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An Employee’s Failure to act can amount to Gross Misconduct

In the recent Court of Appeal case of Adesokan v Sainsbury’s Supermarkets Ltd, it was held that an employee’s failure not to take steps to remedy an act of another employee was in breach of the company’s employee engagement assessment procedure and was enough to warrant dismissal for gross misconduct.

On first reading this decision I thought this was a bit harsh but this case however is really dependent on its facts and in particular the importance that was placed by Sainsbury’s on the employee engagement assessment procedure. The seniority of the employee who was dismissed and his role was also taken into consideration along with the wording of the contract.​

Facts of the Case

Mr A had worked at Sainsbury’s for 26 years. He was the regional operations manager responsible for 20 stores. Sainsbury’s had a key policy called “Talkback” designed to ensure staff motivation and engagement. This was given to all staff in all locations so they could talk in confidence about their working environment.

The human resources manager sent an email to Mr A’s store managers encouraging them to focus on getting their “most enthusiastic colleagues to fill in the survey”. As this would potentially undermine the Talkback survey results, Mr A told the HR manager to clarify what he meant to the store managers so as to not undermine the process. This was not checked up on by Mr A. When Mr A became aware of the fact that the HR manager had failed to follow his instructions, he took no further action.

Mr A was subsequently dismissed for gross misconduct on the basis that he had failed to take adequate steps to remedy the manipulation of the survey scores.

Negligence is enough for Gross Misconduct

An employee’s negligent failure to act can constitute gross misconduct even if the intention is not deliberate, dishonest or wilful. The failure has to be sufficiently serious and the status of the employee will also be taken into consideration. In this case, the employee was a senior manager and was responsible for the implementation of Sainsbury’s Talkback procedure which was undermined by the HR manager.

The Talkback procedure influenced pay, target setting and performance progression and the procedure was critical to Sainsbury’s in its operations. Mr A’s failure to act was enough to constitute gross negligence amounting to gross misconduct as he had a duty to act when he discovered that the procedure was being undermined. This was a serious dereliction of Mr A’s duty and the fact that no harm was actually caused was not a mitigating factor.

This case is useful as it confirms that a negligent failure to act can constitute gross misconduct.